South Carolina continues to struggle with the notion of conflicts of interest

I have argued before that the South Carolina Supreme Court does not understand basic principles of conflicts of interest (see here) and a recent decision involving a lawyer who had "romantic feelings for a client" prompts me to repeat my conclusion.

In this new case (In re Poff, S.C., available here), the court held that having what the court referred to as romantic feelings for the client doesn't create a conflict of interest that rises to the level of an ethics rule violation.  The court concluded that the lawyer's unrevealed romantic interest in the client, "in the absence of any evidence of its effect on his representation, does not, in our view, represent a conflict that rises to the level of a Rule violation."

In other words, the court finds that there is no conflict of interests unless the client is harmed by the conflict of interest.  This view is wrong - in general and as it applies to the facts of the case itself.

As I have stated elsewhere, the court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a harm from happening.  A conflict exists if a lawyer from finding himself or herself in a situation where there is a significant risk that the representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.  The significant risk is what is important.  If there is a significant risk that the lawyer might break a rule there's a conflict. Whether the lawyer breaks the rule is irrelevant.

Thus it is incorrect to think that there is a conflict only if the conflict causes harm to the representation.  On the contrary, it is the risk to the representation what determines that there is a conflict of interest.

The lawyer in this case had a conflict.  The conflict existed because his feelings for the client created a significant risk that the representation could be affected.  Period.  For example, there was a risk that the lawyer would disclose confidential information about the client to others when talking to them about his feelings toward her.... which, not surprisingly, is what actually happened in the case, and which brings me to my next point.  It is incredible that the court would say the representation was not affected since the court found the attorney violated his duty of confidentiality to the client!